Central American Youth Gangs
Highly violent Central American youth gangs spread to ever more countries
Petra Kneuer is Senior Trial Lawyer in the Office of the Prosecutor of the International Criminal Court (ICC) since January 2008, leading the prosecution of Jean-Pierre Bemba Gombo. In this Interview she give insights to the ICC's daily work.
Before joining the International Criminal Court (ICC), you were a prosecutor and prosecution spokesperson in Germany. What are the essential differences between your work at the ICC and your previous jobs - and what are the similarities?
There are significant similarities between fighting terrorism with its globally active network, as I did in my previous national post, and pursuing crimes of genocide, crimes against humanity and war crimes as I do now at the ICC: (1) all such crimes are of an international character and thus rely on international legal cooperation; (2) all of these criminal offences threaten values shared by the community of nations; and (3) all of these crimes cause devastation, pain and suffering to innocent victims and their families and have long-lasting destabilizing effects on society. The main differences between my previous roles in the national judicial system are that the ICC does not have its own police force to implement its decisions and has a broader scope of security implications with far-reaching consequences for witness protection.
The Prosecutor applies to the judges in the Pre-Trial Chamber for a warrant of arrest (or summons to appear). Article 58 of the Rome Statute obligates the Prosecutor to file an application for an arrest warrant which must clearly identify the crimes for which the person's arrest is sought and modes of liability with which he/she will be charged; these must be based on solid factual and evidentiary foundations.
The Pre-Trial Chamber may issue the warrant of arrest if it is satisfied that there are reasonable grounds for believing that the person has committed a crime within the jurisdiction of the Court and if the arrest of the person is necessary to ensure his/her appearance at trial, that he/she does not obstruct or endanger the investigation or court proceedings, and to prevent the person from continuing with the commission of the crime in question or a related crime within the jurisdiction of the Court and which arises out of the same circumstances. There is thus a system of checks and balances, where the Prosecutor makes the request, and the judges are the ultimate decision makers.
Upon the surrender of the arrested person to the Court, the Pre-Trial Chamber promptly holds an initial appearance hearing (Article 60 of the Rome Statute) and sets the date on which it intends to hold a hearing to confirm the charges (Article 121 of the Rules of Procedure and Evidence). 30 days prior to the date of the confirmation hearing, the Prosecutor submits the document containing the charges together with a list of evidence to the Pre-Trial Chamber and the person charged.
Witnesses are identified using three processes: selection, approach and screening. The Office of the Prosecutor (OTP) develops leads for the investigation from the following potential sources: (a) public information available (a witness may have been interviewed by the media); (b) investigations conducted by national authorities; (c) investigations conducted by international organizations and NGOs; (d) investigations conducted by national organizations and NGOs; and (e) victim's organizations, local leaders, etc. These individuals then suggest potential interviewees who may have relevant information for an investigation. Background research is thereafter conducted based on a potential witness' relevance for the case, the security situation, and any personal and cultural issues that may affect interaction with a potential witness before contact is made for the purposes of screening by investigators. The screening process is then carried out to inform the potential witness of the role of the Office and the purpose of the investigation, establish any potential security/safety concerns he/she may have as well as obtain the consent of the potential witness to be interviewed. It is on the basis of the screening process that a decision is finally taken by the Office as to whether the individual should be interviewed as a witness.
Article 68 of the Rome Statute places on the Court as a whole significant protection obligations with respect to victims and witnesses and their participation in proceedings. In particular, the Prosecutor must take measures during the investigation and prosecution of crimes to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Furthermore, the Court has a dedicated Victims and Witnesses Unit (VWU) established pursuant to Article 43(6) of the Rome Statute. The VWU, in consultation with the OTP, provides protective measures, security arrangements, counseling and other appropriate assistance.
The Prosecutor's duties according to Article 54(1)(b) of the Rome Statute should also be noted, i.e. to take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and, in so doing, respect the interests and personal circumstances of victims and witnesses, including age, gender and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children. Furthermore, pursuant to Article 57(3)(c) of the Rome Statute, the Pre-Trial Chamber has the power to - where necessary - provide for the protection and privacy of victims and witnesses.
In addition to supporting these Court-wide protection strategies, the OTP has its own policies and procedures with respect to the protection of all persons whose safety is at risk on account of the activities of the OTP. The Office cooperates with the VWU as well as international and national partner institutions on the ground to implement protective measures.
The OTP's strategy envisages an operational concept which reduces the likelihood of a witness being threatened and minimizes the incidence of such occurrences. In keeping with the prosecutorial strategy, the Office seeks to rely on the smallest number of witnesses necessary to prove its case by conducting focused investigations and prioritising evidence. A clear case theory and the identification of required evidence is key. This involves situation-specific security assessments, cooperation agreements and investigative strategies, such as not contacting witnesses before appropriate security measures are in place. Where possible priority is given to using witnesses who reside in safe areas that allow for the execution of this operational strategy.
There are a range of response systems for witnesses in the Court structure: The Initial Response System (IRS) is a system that allows the Court to respond to witnesses who have been threatened and/or attacked. It is implemented by the VWU in conjunction with the OTP and relies on the cooperation of local authorities. The VWU is ultimately responsible for managing the IRS and witnesses. The Secondary Response System (SRS) involves the use of a variety of protective measures (e.g. safe havens).
There is also an ICC Protection Program. This program is managed by the VWU and, as you can imagine, it is a very resource-intensive program.
As each new investigation is initiated, the OTP, in cooperation with the VWU, conducts a general security risk assessment. In addition to the security risk assessment for the investigation, specific threat and risk assessments in each area of operation inside an investigation and individual risk assessments: (i) for all individuals who cooperate with the OTP and; (ii) for other individuals who may be at risk on account of the activities of the OTP are conducted. These documents are updated on a regular basis. In cooperation with the VWU, these documents allow for the development and implementation of a strategy with respect to the protective measures necessary to eliminate or manage all foreseeable risks.
The Prosecution may also request a Chamber to order measures to protect a victim, a witness or other person at risk during the court proceedings on account of testimony given by a witness in court (Rule 87(3) of the Rules of Procedure and Evidence). Measures include, but are not limited to: a) redacting the name of a person and any identifying information from the public records of the Chamber; b) prohibiting the parties and the participants to the proceedings to disclose the name and any identifying information of a person to a third party; c) presenting evidence by electronic or other special means, including by image or voice alteration, videoconferencing and close-circuit television and the exclusive use of sound media; d) using pseudonyms; or e) conducting proceedings, or parts thereof, in closed session.
Finally it is worth mentioning that the Court's track record with regard to witness protection is very good; to date no witness has been harmed.
How respected is the work of the ICC internationally, can the ICC really make a change in the affected countries? On what does the ICC base its legitimacy?
The Court's respect has been acknowledged through the increase of its States Parties (in 2011 six more nations became States Parties, bringing the total to 120). More national jurisdictions have embraced the complementarity principle of and cooperation with the ICC. This is evidenced through the establishment of the International Crimes Division of the High Court of Uganda to prosecute international crimes as well as the commencement of domestic proceedings for mass atrocity cases in Colombia. More countries continue to ratify and domesticate the Rome Statute. The unanimous referral by the United Nations Security Council of the Libyan situation, including 5 positive votes on non-States Parties of the Rome Statute is another indicator that the Court is accepted as part of the international landscape.
The impact of the Court, beyond the confines of the courtroom, is where the true importance of the Court lies. In practice we see that the Court's shadow is increasing, impacting other institutions. The Court's activities are affecting the behavior of governments and political leaders; armies all over the world are adjusting their operational standards; conflict managers and peace mediators are refining their strategies, taking the work of the Court into account and respecting the legal limits.
Let's look at the case against Thomas Lubanga Dyilo for example: above and beyond any final decision in the Lubanga case, it has helped trigger debates on child recruitment in countries like Colombia or Sri Lanka, and child soldiers were released in Nepal. The Special Representative of the UN Secretary-General on Children in Armed Conflicts immediately factored in such potential and used the Court as a tool to campaign around the world and secure even more releases.
This is an example of how to use the law to prevent crimes. The Lubanga ruling changed the lives of little boys and girls - never again will they be excluded from the assistance provided by demobilization programmes; never again are they to be used as fighters or sexual slaves.
The ICC is focused on bringing about change in the affected countries primarily by holding the perpetrators of the most serious crimes of concern to the international community accountable. By permitting victims of the crimes to participate in court proceedings and obtain reparations for their suffering, the Court offers the most severely affected individuals from the conflict countries retributive and restorative justice which their national jurisdictions are unable to provide. The Court has encouraged countries to emulate its justice mechanism through the domestication of the Rome Statute and as a result more countries are working towards national prosecution of perpetrators of the most serious crimes of international concern.
The ICC's legitimacy is based on the professionalism of the Court's staff, the quality of the rulings issued by the Chambers and the fairness of the trial proceedings and punishments issued by the Court. The Court's acceptability or success is illustrated by the number of situations that are currently before it: 7 in total. Court hearings have similarly increased in number to over 300 in the last three years. There has also been an escalation in the number of victims' applications for participation in proceedings and reparations from the Court. These quantitative factors coupled with the growth in the number of States Parties are indicative of the Court's authority and role in the international legal order.
Economy and politics are becoming increasingly international. Countries and regions band together politically and economically. Is it therefore becoming more important that international judicial bodies exist? What should international justice aspire to achieve, what should it aim at?
We cannot overemphasize the role of institutions. The world is facing different international problems, which in turn require regulation: climate change, international trade, international finances and international crimes. The two areas in which we can see some progress are those where international institutions were created to manage the challenges: international trade and massive crimes managed by the World Trade Organization and the ICC Rome Statute respectively.
It is important that international judicial bodies exist in order to give states sufficient fora to resolve their differences (Article 95 of the UN Charter). Proliferation by increasing the availability and operation of international judicial bodies encourages states to resort to international adjudications and in the long run promotes peaceful dispute settlements. It further enhances respect for international law and the growing deterrent effects of the law - thereby strengthening the international legal system as a whole.
While the proliferation of international judicial bodies has generally been regarded as disadvantageous to the legitimacy of international law, it is important that a structural relationship exist between the courts/tribunals in order to avoid issues of conflicting jurisdiction, forum shopping (where parties move from court to court seeking the most favorable ruling or opinion) and fragmentation (as a result of different judicial bodies issuing various interpretations of a legal point) so as to protect or promote the consistency and coherency of international law.
The ICC Rome Statute offers a solution, a new instrument of peace for creating global governance without a global government but with international laws and courts. The Court was built out of realism, as a form of protection. That is the main point: accountability and the rule of law provide the framework for managing conflicts and protecting individuals and nations from massive atrocities. Citizens of the States Parties of the Rome Statute are under the protection of the ICC.
Intervention by the Court can help end conflicts, hold those most responsible for the most serious crimes accountable, and encourage national proceedings.
It clarifies that the Rome Statute strengthens a new trend: no more impunity for the alleged perpetrators of massive crimes. In the Rome Statute community, leaders who use massive violence to gain or retain power will be held accountable.
Some of the most heinous crimes were committed during the conflicts which marked the 20th century. Unfortunately, many of these violations of international law have remained unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the Second World War. In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognized the need for a permanent international court to deal with the kinds of atrocities that had just been perpetrated.
The idea of a system of international criminal justice re-emerged after the end of the Cold War. However, while negotiations on the ICC Statute were underway at the United Nations, the world was witnessing the commission of heinous crimes in the territory of former Yugoslavia and in Rwanda. In response to these atrocities, the United Nations Security Council established an ad hoc tribunal for each of these situations.
These events undoubtedly had a truly significant impact on the decision to convene the conference which established the ICC in Rome in the summer of 1998. It is important to note that the ICC's work is based on the principle of complementarity. That means that genocide, crimes against humanity and war crimes should primarily be prosecuted by national states. The ICC only has competence to prosecute these crimes when the respective state is not willing or able to do so. The Court as a whole and the OTP cooperate with the states and encourage national investigations and prosecutions.
In most cases the ICC deals with wars and war-like situations. What role do foreign countries and foreign or international institutions like the ICC play in coping with a brutal and violent past?
The ICC has brought about the progressive development of transitional justice, transnational justice and international criminal accountability. The Court's work has created a clearer and stronger presumption in favour of accountability and against impunity with respect to serious abuses. On the basis of the provisions of Articles 13 and 16 of the Rome Statute, the Court upholds the necessity and value of pursuing measures for international peace and security in conflict situations prior to investigations or prosecutions at the ICC.
Through the Trust Fund for Victims, the Court undertakes activities that address the harm resulting from crimes under the Court's jurisdiction by assisting victims in returning to a dignified and contributory life in their communities.
Equally importantly, the Court, through its intervention, helps prevent future crimes. For instance, our prosecutions in Kenya, where charges have been confirmed against four of the six suspects, will help support the process of structural reforms in the country and prevent violence during the next presidential elections. They will also hopefully serve as a deterrent in other presidential elections across the world, putting political leaders on notice: if they use massive violence, they will be prosecuted.
The ICC has jurisdiction over "the most serious crimes of concern to the international community as a whole". What can the ICC still achieve with its jurisdiction when all the atrocities have already been committed?
Firstly, even monitoring a situation or opening an investigation can deter new crimes. The prosecution of crimes is an even stronger deterrent. This effect is not limited to the situation under review or investigation; it can send a powerful warning to people potentially engaged in crimes in other countries. For example, following charges against Thomas Lubanga Dyilo for using child soldiers in active hostilities, armies around the world are adjusting operational standards to the Rome Statute.
Secondly, the Rome Statute provides for reparations for the victims of such atrocities. While it is impossible to undo the harm caused by genocide, war crimes and crimes against humanity, it is possible to help survivors in general, and the most vulnerable among them in particular, rebuild their lives and regain their dignity and status as fully-functioning members of their societies.
The Rome Statute set up the Trust Fund for Victims which advocates for victims and mobilizes individuals, institutions with resources, and the goodwill of those in power to benefit victims and their communities. It funds or sets up innovative projects to meet victims' physical, material, or psychological needs. It may also directly undertake activities defined and requested by the Court. The Trust Fund for Victims can act to benefit victims of crimes regardless of whether there has been a conviction by the ICC. It cooperates with the Court to avoid any interference with ongoing legal proceedings.
As regards the role of victims in criminal proceedings, there is a novelty the Rome Statute created. At the ICC, victims have the right to participate not only in the reparation proceedings, but also in the trial itself that determines the guilt or innocence of the accused.
Speech of President Song at the 10th session of the Assembly of States Parties, 12 December 2011, page 2:
"The number of new applications by victims considered by the Court for participation in the proceedings rose from 757 in 2009 to 2239 in 2010. 2011's total was more than double - 5865 up to November 2011. Most striking of all, the number of applications for reparations has risen exponentially - a sixfold increase from 119 in 2009 to 739 in 2010, followed by a further eightfold increase to 6254 by the end of November 2011.
As I already mentioned - by intervening the Court will also help prevent future crimes. Our prosecutions in Kenya are again an excellent example of the Court's preventative role."
The cases the ICC is working on often date back many years. Is prosecution then still worthwhile? Is it not more important for the affected countries to look ahead and build something new?
International justice, national justice, the search for the truth, and peace negotiations are not alternative ways of achieving a goal; they can be integrated into one comprehensive solution. Looking ahead is not possible as long as atrocities remain unpunished. Impunity prevents stable peace and development after conflicts.
Can warmongers be held responsible for crimes that they have ordered but not carried out themselves? How can you counter the arguments of a military leader who does not want to take responsibility for the acts of his troops?
The Court will not be able to bring every person suspected of committing crimes of concern to the international community to justice. The prosecutorial policy of the OTP is to focus its investigations and prosecutions on those who, after the evidence gathered has been considered, are deemed to bear the greatest responsibility for such crimes.
Article 28 of the Rome Statute specifically provides for the criminal responsibility of military and political leaders. Their responsibility is rooted in the fact that they did not control their troops or, when crimes happened, punish and investigate them although they had the ability to do so. The case I am working on deals with just such a situation. The accused, Jean-Pierre Bemba, sent his troops to a neighboring country where they committed rape, murder and looting. During most of the times when the crimes were committed, the accused was in another country. However, he remained in charge of his troops during the whole conflict.
We consider this form of criminal responsibility, so-called command responsibility, a particularly important form of liability because it sends a message to military and political leaders that they cannot abuse their powers and then relinquish their responsibilities.
In the video interview you gave at the "Minds for Change"-Conference you mentioned that wars are closely entangled with finances and that you aim to reveal these underlying structures. However, the ICC only convicts individuals, and only those who committed direct crimes against humanity. Do you have the means at all to investigate the large structures in the background?
Investigating the link between finance and conflict has been part of our strategy from its inception when the Prosecutor took office in 2003. Our assumption was and is that in order to prevent crimes being committed in conflict zones, one needs to look at the dynamics that fuel a conflict. Conflicts seem to be largely driven either by ideology, by the potential for financial enrichment, or by a combination of both. Allow me to illustrate how carrying out financial investigations has helped the OTP develop its cases and identify opportunities for maximizing its impact on the prevention of crime.
The financial investigations of the OTP have three main goals: Offer a different type of evidence against those most responsible, and by doing so decrease the number of physical witnesses who experience highly complicated protection issues; Identify assets for victims' compensation and reparations; Disrupt criminal organizations by freezing assets or other enforcement action taken by states based on ICC information.
In dealing with armed groups or even a state apparatus, financial investigations have helped us to identify assets and provided us with evidence of who the persons most responsible are. In order to be effective, we should, however, look beyond these structures that commit the actual atrocities and identify the others players in the conflict, namely the broader network around the criminal organization. Here, once again, the financial angle of the investigation is of extreme value. Indeed, there is more to following the money than the money itself.
Within the context of integrated action, the OTP has initiated a network of national law enforcement agencies and other specialized institutions and organizations to coordinate and strengthen efforts to investigate and prosecute persons responsible for international crimes. This network can be used to support and foster domestic investigations and prosecutions of persons responsible for doing illegal business with armed groups in conflict zones, along with other additional uses. This can be accomplished by exchanging evidence, mutually supporting investigations and sharing expertise. The OTP intends to contribute to this network by sharing some of the information that it has obtained in the context of its own investigations with national authorities, but also by facilitating contacts among national authorities and other specialized organizations and sharing its experience in investigating and prosecuting crimes committed in conflict zones in an efficient manner.
How do you investigate in countries like the Democratic Republic of Congo? Which law applies for investigations in states whose governments are often not likely to welcome the ICC?
The Court does not have its own police force. Accordingly, it relies on state cooperation, which is essential for arresting and surrendering suspects.
According to the Rome Statute, States Parties shall cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
Chapter IX of the Rome Statute elaborates on the different forms of cooperation that the Court can demand from a State Party for the purpose of investigating or prosecuting a crime within the jurisdiction of the Court. The obligation to cooperate with the ICC also entails an obligation to implement procedures under national law that will facilitate such cooperation. Accordingly, a state should be able to fully comply with requests regarding arrests, provisional arrests, surrender of persons and other forms of cooperation regarding, inter alia, access to information, gathering of evidence, searches and seizures, witness protection, freezing of assets and any other type of cooperation not prohibited by the law of the State Party to whom the request is made. Special voluntary cooperation agreements can form the basis of enhanced cooperation with states where situations are being investigated or cases prosecuted, or for the implementation of witness protection and relocation programs, as well as sentence enforcement or the interim release of accused persons.
If a State Party does not fulfill its obligation to arrest a suspect, the relevant chamber of the Court may make a finding of non-compliance with a Court request to cooperate against that State Party and inform the Assembly and/or the UN Security Council so they may take any measures they deem appropriate. In 2011, the issue of non-cooperation came to the fore due to the travels of ICC suspect Sudanese President Omar Al-Bashir to Kenya, Chad and Djibouti , and the failure of the respective authorities to arrest President Al-Bashir.
In all three situations, the Chamber issued decisions informing the UNSC and the ASP about the visits. Later in the year, Al-Bashir also traveled to Chad and Malawi. In both situations, the Chamber decided that the respective authorities had failed to cooperate with the Court by not arresting him, and to refer the matter to both the UNSC and the ASP. With regard to Malawi, the Chamber also indicated that Chad failed to comply with its obligation to consult with the Chamber by not bringing the issue of Omar Al Bashir's immunity to the Chamber for its determination. The Chamber reaffirmed that there is no conflict between the obligations of States Parties to the Rome Statute towards the Court to arrest and surrender a suspect and their obligations under customary international law.
In practice for the OTP, this means that the cooperation of the national authorities is necessary for all investigations. The OTP informs the state about the investigation missions and any other steps undertaken in its territory. If the state is not willing to cooperate, investigations are conducted in neighbouring countries, including the questioning of witnesses and collection of documentary material. This has been the case for Sudan, for example.
Article 66(2) of the Rome Statute provides that the onus is on the prosecution to prove the guilt of the accused and the prosecution similarly bears the responsibility to bring evidence for the guilt of the accused. The threshold for the conviction of an accused person is that the Court must be convinced beyond reasonable doubt of the guilt of the accused (Article 66 (3) of the Rome Statute). This essentially means that for an accused person to be found guilty of a crime within the jurisdiction of the Court, the Prosecutor must disprove any other reasonable conclusions and eliminate any reasonable doubt that the accused may not be liable for the commission of those crimes.
Over the years countries have been critical of the ICC's legitimacy and the Prosecutor's discretionary powers based on the number of failed indictments and the lack of a single conviction so far, however the factors that contribute to indictments not materializing are external to the Court in nature. While indictments are issued by the ICC, the duty lies on States Parties to enforce them through cooperation by arresting and/or extraditing suspects.
Convictions will therefore be the measurement of the success of the Prosecutor and the ICC as an institution because of their bearing on the Court's credibility, reputation and future cooperation by Member States.
The Rome Statute, the Rules of Procedure and Evidence and the Regulations of the Court and of the Registry contain important provisions for the protection and support of victims and witnesses. These provisions are key for the successful functioning of the Court and aim to ensure that victims can participate in proceedings and that witnesses testify freely and truthfully without fear of retribution or suffering further harm.The Court has a duty to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses (Article 68 (1) of the Rome Statute).
To this end, pursuant to Article 43 (6) of the Rome Statute, the Registrar has set up the VWU within the Registry to provide protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony.The OTP conducts investigations in a manner that does not jeopardize the safety of anyone who provides evidence. Ensuring the safety and well-being of victims and witnesses is a high priority. The OTP works closely with the Registry, which has primary responsibility for protecting witnesses.
Upon my arrival at the Court in January 2008, the Chief Prosecutor entrusted me with the investigation and prosecution of the case against Jean-Pierre Bemba. Our trial began in November 2010, is currently ongoing and may last for another year.
National jurisdiction has primacy over international jurisdiction - how does the ICC deal with this? Does this mean that the ICC cannot proceed against criminals from most states?
The ICC operates on the principle of complementarity; where national criminal jurisdictions are unwilling or genuinely unable to carry out investigations and prosecutions of the most serious crimes of international concern, then the Court investigates and prosecutes these allegations instead. In this respect, the ICC complements national criminal jurisdictions by providing a permanent international institution to effect the investigation and prosecution of international crimes where states cannot.
The Rome Statute envisages that the ICC has universal jurisdiction, and in particular highlights three circumstances in which the Court may prosecute nationals of non-parties, i.e. when situations are referred to the ICC Prosecutor by the UN Security Council (per Article 13 of the Rome Statute); when a non-party national commits a crime on the territory of a State Party or a nation that accepts the jurisdiction of the Court with respect to that crime (Article 12 (2) (a) and (3) of the Rome Statute); and where a non-party consents to the Court's exercise of jurisdiction with respect to a particular crime.
The ICC's main challenges include intervention in conflict situations and peace processes; this has great bearing on the Court's operations in relation to security inside conflict regions along with that of the court's own staff/personnel stationed there and intermediaries. It is often difficult to access victims, witnesses or places where crimes were committed and then there is the risk of losing evidence due to the passage of time.
The Court's legitimacy and support broadly relies on cooperation by states and international organizations to ensure the arrest and transfer of suspects, guarantee access to information, gather evidence, freeze and seize suspects' assets and execute sentences. Promoting ratification of the Rome Statute is vital for the Court's universality; this is the only way the ICC can expand its field of influence and be capable of investigating international crimes and prosecuting perpetrators in more states.
Speech of the Chief Prosecutor Luis Moreno-Ocampo at the 10th session of the Assembly States Parties, 12 December 2011, page 5 onwards:
The Rome Statute system is working, its existence is no longer at risk. Investigations advance, the entire network of cooperation is performing. Judges are ensuring fair trials and deciding on the individual responsibility of the accused. The fear of a frivolous prosecutor abusing the powers granted by the Statute was replaced by the challenges created by a serious institution. The States Parties of the Rome Statute have to adjust to these new challenges. I see two potential grave risks ahead.
The first risk is a Court with no independence. Independence should not be taken for granted. National or parochial interests are providing incentives to control the Court. Reality has demonstrated that the Office's independent decisions have triggered conflicts of interests for states. Leaders who are using crime to retain power have criticized the Court and managed to mobilize some international support to this end. States Parties have struggled to prioritize their commitment to international justice over more immediate economic or political interests. Such diverse and sometimes conflicting interests exist within national governments, between country experts, legal advisors and conflict managers. Some of them may, at times, perceive the Rome Statute as an unnecessary constraint and try to limit its powers. They have incentives to control the Court through the undue expansion of states' oversight. These are accepted diplomatic practices but will destroy the Rome Statute system. Without independence the International Criminal Court has no value.
The second risk is that of an isolated Court. A Court that produces legal debates, but is ignored in the management of massive violence. Reality shows that some of the leaders sought by the Court threatened to commit more crimes to retain power, blackmailing the international community with a false option: peace or justice. The efficiency of the Court will depend on how political leaders and conflict managers react to such blackmail. To contribute to peace and security, the Office of the Prosecutor has to hold to the legal limits; it cannot be blackmailed. The Office's mandate is to investigate the facts with impartiality and apply the law with integrity. Since the failure to appease criminal leaders in Munich in 1938, there has been a need to rethink how to negotiate conflicts more efficiently.
The establishment of the ICC has been a milestone in humanitarian law. The Court started trials in 2009 and is facing complex practical and legal challenges not seen by any other international tribunal. However, the Court has cemented its place as an independent permanent international criminal court of war crimes, crimes against humanity and genocide. The Court will continue to strengthen its efforts to provide justice to the victims of such crimes and to promote the rule of law.